Saturday, March 19, 2016

May 2016 KSC docket

Here are the criminal cases on the KSC docket for May 2-5, 2016. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website and archived (here) if you would like to watch any of these arguments.

May 2--Monday--a.m.

State v. Kyle Carter, No. 112,269 (Sedgwick)
Direct appeal; first-degree premeditated murder
Samuel Schirer
[Affirmed; Beier; September 30, 2016]
  • Prosecutorial misconduct
  • Preliminary instruction on reasonable doubt
  • Failure to give lesser-included offense instruction
  • Improper aiding and abetting instruction
State v. Quartez Brown, No. 113,253 (Sedgwick)
Direct appeal; felony murder
Korey A. Kaul
[Affirmed; Luckert; October 28, 2016]
  • Failure to substitute counsel
State v. Jimmy Netherland, No. 112,806 (Shawnee)
Direct appeal; felony murder
Gerald E. Wells
[Affirmed; Beier; September 30, 2016]
  • Insufficient evidence
  • Prosecutorial misconduct

May 3--Tuesday--a.m.

State v. Jose Solis, No. 111,556 (Johnson)
Direct appeal; premeditated first-degree murder
Carol Longenecker Schmidt
[Affirmed; Johnson; September 9, 2016]
  • Improper admission of prior bad act evidence
  • Failure to give limiting instruction
  • Failure to give lesser-included offense instructions
  • Improper reasonable doubt instruction
State v. Tony Schaefer, No. 109,915 (Shawnee)
Direct appeal (petition for review); motion to withdraw plea
Johnathan M. Grube (brief); Carol Longenecker Schmidt (argue)
[Affirmed; Johnson; December 23, 2016]
  • Failure to allow withdrawal of plea
  • Failure to inform defendant of possibility of civil commitment
State v. Joseph Mattox, No. 111,162 (Johnson)
Direct appeal; premeditated first-degree murder
Catherine A. Zigtema
[Affirmed/Vacated; Stegall; March 10, 2017]
  • Improper imposition of hard-50 sentence
  • Improper instructions on intent, premeditation, aiding and abetting, etc.
  • Failure to accept plea to non-homicide charges
  • Failure to suppress statements
  • Improper admission of statements obtained during psychological exam

May 4--Wednesday--a.m.

State v. Antonio Brown, Sr., No. 111,166
Direct appeal; felony murder
Peter Maharry
[Affirmed; Biles; January 20, 2017]
  • Failure to suppress statements
  • Improper imposition of upward departure
  • Failure to give lesser-included offense instructions
  • Insufficient evidence of obstruction
State v. Michael Staten, No. 108,305 (Wyandotte)
Direct appeal (petition for review); aggravated battery
Rebecca L. Kurz (brief); Michael P. Whalen (argue)
[Affirmed; Rosen; August 12, 2016]
  • Instruction on burden of proof for self defense
  • Prosecutorial misconduct
  • Failure to substitute counsel
State v. Troy Love, II, No. 112,611 (Saline)
Direct appeal; felony murder
Peter Maharry
[Affirmed; Biles; January 20, 2017]
  • Improper admission of autopsy photos
  • Improper exclusion of evidence of civil suit
  • Prosecutorial misconduct
  • Failure to give lesser-included offense instructions
State v. Deaarion Potts, No. 113,302 (Wyandotte)
Direct appeal; felony murder
Samuel Schirer
[Affirmed; Rosen; June 24, 2016]
  • Insufficient evidence
  • Failure to suppress statements
  • Improper aiding and abetting instruction
  • Improper certification for adult prosecution (Apprendi)

May 5--Thursday--a.m.

State v. Bryant Seba, No. 113,149 (Pratt)
Direct appeal; premeditated first-degree murder
Michelle A. Davis
[Affirmed; Luckert; September 30, 2016]
  • Insufficient evidence
  • Failure to give lesser-included offense instructions
  • Improper definition of "intentionally"
  • Failure to give instructions for imperfect self-defense
  • Improper admission of gruesome photographs
State v. Tiofilio Rodriguez, No. 110,346 (Grant)
Direct appeal (petition for review); aggravated kidnapping
Randall L. Hodgkinson
[Affirmed in part/Vacated; Johnson; March 24, 2017]
  • Defective complaint
  • Improper classification of prior conviction

Friday, March 18, 2016

Aggravated burglary requires proof of presence at time of burglary

 Lydia Krebs and Peter Maharry won in State v. Daws, No. 108,716 (Kan. February 19, 2016), reversing a Wyandotte County aggravated burglary conviction. The state charged Mr. Daws with entering a building with intent to commit a theft while a human being was present. But the only evidence showed that no one was present in the building until after Mr. Daws had entered. The KSC majority held that there are different ways to commit burglary and the state is required to prove what it charges:

As charged and instructed in this case, aggravated burglary is defined as "without authority, entering into . . . any building . . . in which there is a human being with intent 11 to commit . . . theft . . . therein." . . . And because aggravated burglary is complete once unauthorized entry occurs, the Court of Appeals view impermissibly extends the crime until the burglar leaves or completes the ulterior felony. 

It is "a basic premise of Anglo-American criminal law that the physical conduct and state of mind must concur." 1 LaFave, Substantive Criminal Law § 6.3(a), p. 451 (2d ed. 2003) (discussing actus reus and mens rea). In the context of aggravated burglary, this idea is embodied in this court's holdings that "[t]o support a conviction for aggravated burglary, the intent to commit a felony and the unauthorized entering into or remaining within must at some point in time coexist." But the aggravated burglary statute's human presence element is not governed by this rule because it does not involve the required physical conduct (entering into) or the state of mind (intent to commit the ulterior crime). The human presence element is more aptly described as an attendant circumstance. See 1 LaFave, Subst. Crim. L. § 6.3(b). When the elements of a criminal statute include an attendant circumstance, that attendant circumstances must concur with the other elements. 1 LaFave, Subst. Crim. L. § 6.3(b) p. 12 455 ("With crimes which require physical conduct, mental fault, and attendant circumstances, the circumstances must concur with the conduct and fault."). To hold otherwise collapses the two means of committing aggravated burglary.

In light of the uncontroverted testimony that Daws spent a day inside the victim's home before the homeowner returned, the remaining within means of committing aggravated burglary was the appropriate charge. Since the jury was only instructed on the entering into means of committing aggravated robbery and the victim was not present when Daws entered the residence, we hold there was insufficient evidence to sustain the aggravated burglary conviction and reverse that conviction. This necessarily requires us to overrule Reed and its progeny as they relate to the crime of aggravated burglary when the defendant is only charged with unauthorized entering into a building or residence and another person is not present at that time.

Post-trial Stand Your Ground decision is an acquittal

 Patrick H. Dunn won in State v. Barlow, No. 108,830 (Kan. Feb. 19, 2016), affirming Judge Peterson's post-trial order dismissing attempted second-degree murder charges based on Kansas' Stand Your Ground law. The KSC first had to consider whether the post-trial order qualified as an acquittal, which would not be appealable by the state:

In this case, the Court of Appeals panel focused on what it believed to be the tardiness of the district judge's consideration of Stand-Your-Ground immunity. This focus on timing obscured the more basic question of whether the order underlying the appeal qualified as a judgment of acquittal. Again, the path taken by a district judge to arrive at such an acquittal order may be flawed, but, regardless, it is not subject to reversal on appeal. Reinstatement of a defendant's conviction is forbidden. In this case, there is no question that the second element necessary for an acquittal order is present: jeopardy had attached. Barlow's jury had been impaneled and sworn, had received evidence, had heard arguments, had deliberated, and had returned a verdict. This moves us to address the first element, whether the district judge's order resolved some or all of the factual elements of the offense charged. 

The district judge wrote that he found J.M.-M. to be "an extremely unreliable witness" who "committed perjury throughout his entire testimony." In contrast, the judge regarded Barlow as credible and wrote that "various points of his testimony were corroborated by other evidence." The district judge found that J.M.-M. was "at a minimum committing a sexual assault against [T.S.]" while she was unconscious due to intoxication, "but most likely was committing rape against her with his fingers . . . ." The district judge further determined that Barlow possessed a reasonable belief that J.M.-M. was raping T.S. Noting that Barlow had made multiple attempts to intervene physically before resorting to the retrieval and use of the revolver, the judge concluded that Barlow's use of force to stop the rape was reasonable. Ultimately, "by a preponderance of the evidence," the judge ruled that Barlow's version of events was true and that he was entitled to Stand-Your-Ground immunity.

Generally, a reference to "preponderance of the evidence" means "'evidence which shows a fact is more probably true than not true.'" And the district judge's finding that Barlow's version of events was more probably true than not true eliminated the possibility that the State could prove beyond a reasonable doubt that Barlow's use of force was not reasonable. See K.S.A. 2014 Supp. 21-5108(c) (defendant entitled to instruction on every affirmative defense supported by evidence; once defendant produces such evidence, "state has the burden of disproving the defense beyond a reasonable doubt"). This necessarily means the district judge found that the State could not meet its burden to prove Barlow's criminal culpability; the State's evidence was insufficient to support a conviction for attempted second-degree murder. This determination qualifies as a resolution of factual elements of the charged offense.

Given this resolution, and the unquestionable attachment of jeopardy, we have no hesitation in holding that the district judge's order qualified as a judgment of acquittal.

Because the district court's order was an acquittal, the KSC held that the COA did not have jurisdiction to reinstate a verdict. The KSC went on to hold (on a question reserved) that the district court could enter a post-trial acquittal based on Stand Your Ground:

May a district judge sua sponte grant Stand-Your-Ground immunity to a criminal defendant after a jury has returned a guilty verdict but before sentence on the conviction has been pronounced? The answer to this question is: Yes. A district judge may consider Stand-Your-Ground immunity sua sponte at any time before pronouncement of sentence.